Commonwealth v. Freeman, 581 C.D. 2015
| Decision Date | 15 June 2016 |
| Docket Number | No. 581 C.D. 2015,581 C.D. 2015 |
| Citation | 142 A.3d 156 |
| Parties | COMMONWEALTH of Pennsylvania v. Allen FREEMAN, Appellant. |
| Court | Pennsylvania Commonwealth Court |
J. Kerrington Lewis, Pittsburgh, for appellant.
Ahmed T. Aziz, 1st Assistant District Attorney, Beaver, for appellee.
BEFORE: MARY HANNAH LEAVITT, President Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge, and MICHAEL H. WOJCIK, Judge.
OPINION BY Judge P. KEVIN BROBSON.
Appellant Allen Freeman (Freeman) appeals from an order of the Court of Common Pleas of Beaver County (trial court), dated March 11, 2015, in which the trial court denied Freeman's petition for return of $27,690 in cash that the Commonwealth seized from him during a traffic stop as derivative contraband and ordered the forfeiture of the cash. On appeal, Freeman contends that the Commonwealth failed to establish the required nexus between the cash and criminal activity to support statutory forfeiture of the cash. Freeman also contends that the trial court erred by failing to consider Freeman's testimony, which he contends supports his claim that he lawfully obtained and possessed the cash. For the reasons set forth below, we reverse the trial court's forfeiture decision with respect to the $8,000 found in the center console of the vehicle and the $690 found on Freeman's person. We vacate the trial court's forfeiture decision with respect to the approximately $19,000 found in the trunk of Freeman's vehicle, and remand the matter to the trial court with direction that the trial court consider Freeman's “innocent owner” evidence.
I. BACKGROUND
According to the trial court's findings of fact, which Freeman does not challenge on appeal, on December 14, 2014, Freeman's girlfriend, Kyahna Tucker, called the Ambridge Police Department and reported that Freeman had assaulted her in the home they shared with their child. Ms. Tucker told police that Freeman had just left the home in his Dodge Charger and had a firearm with him. Ms. Tucker also informed police that a white United States Postal Service (USPS) mailer, containing cash that Freeman planned to use to purchase marijuana from a contact in California, could be found in the trunk of the vehicle.
The Ambridge Police Department dispatched Officer Alfred Bialik to search for Freeman. In the meantime, a police officer from a neighboring jurisdiction spotted the vehicle and stopped Freeman. Officer Bialik traveled to the scene and placed Freeman under arrest. The police officers found $690 and three cellular telephones on Freeman's person. Officer Bialik also searched the area of the vehicle within Freeman's wingspan. This search turned up an envelope in the center console containing $8,000 in cash, bundled with rubber bands in $1,000 increments.
Officer Bialik and the other officers requested Freeman's permission to search the trunk based on their findings up to that point and the information provided by Ms. Tucker. Freeman acquiesced. In the trunk, police officers found a firearm, numerous boxes of Ziploc vacuum bags, a Ziploc vacuum bag sealer system, latex gloves, and a white USPS parcel matching Ms. Tucker's description. After securing the vehicle at the scene, Officer Bialik requested a K–9 unit. The dog alerted the police officers to the front driver's side and passenger's side door, indicating the odor of narcotics based on the dog's exterior search of the vehicle. The vehicle was towed to the Ambridge Police Station.
The next day, the police officers secured a warrant to search the vehicle, including the USPS parcel. Within the USPS parcel, the police officers discovered a safe. Within the safe they found two stacks of vacuum-sealed money, with Bounce dryer sheets next to each stack. The parties stipulate that the total amount of money seized from Freeman's person and from within the trunk and passenger compartment of the vehicle was $27,690.1
42 Pa.C.S. § 6801(a)(6)(i)(A) (emphasis added). In reaching this conclusion, the trial court found persuasive the testimony of Ms. Tucker, who confirmed her initial report to police about Freeman's intentions for the cash. The trial court found that this evidence established “why [Freeman] was travelling with that money and what his plans were for it.” (Trial Ct. Opinion at 9.) The trial court also noted that Ms. Tucker's description of the parcel in her initial report to police officers was consistent with the parcel that police officers recovered from Freeman's vehicle, apparently bolstering, in the trial court's view, the weight it gave Ms. Tucker's testimony.
The trial court also found persuasive the testimony of Officer Bialik and Agent Opsatnik from the Pennsylvania Office of Attorney General. Officer Bialik testified that the vacuum packaging of money with dryer sheets is a “known ... tactic to try to elude police officers and police K–9s from detection.” (Reproduced Record (R.R.) 51.) Freeman stipulated on the record that Agent Opsatnik was an “experienced narcotics investigator,” indeed, “a good one.” (R.R. 124.) Agent Opsatnik corroborated Officer Bialik's testimony regarding the packaging of money in narcotics transactions. Agent Opsatnik testified that, in his experience, money in narcotics transactions is vacuum packed or wrapped, commonly with a dryer sheet or something else to mask the odor, out of concern that the money may have come into contact with illegal drugs. (R.R. at 125, 128–29.) In his decades of experience, Agent Opsatnik testified that he has seen this tactic employed hundreds of times. (Id. ) Agent Opsatnik reviewed photographs taken of the seized cash and testified that the packaging of the cash was consistent with the trafficking of money for narcotics purposes. (Id. )
The trial court also considered the text messages as relevant for purposes of establishing the nexus to drug trafficking activities. According to the trial court, the text messages reveal a transaction network between Pennsylvania and California, of which Freeman was a part. The text messages refer to particular strains of marijuana, amounts, and prices, as well as plans for drug transactions through the mail. The trial court noted that the text messages corroborated Ms. Tucker's testimony about Freeman's plans to mail money by USPS parcel to California to purchase drugs. The text messages also discuss “padding” the money to prevent it from “smelling.” The trial court also noted Freeman's use of three cell phones and used that finding as part of the totality of the circumstances in assessing whether the Commonwealth met its burden. In short, the trial court credited Ms. Tucker's testimony as well as the testimony of Officer Bialik and Agent Opsatnik, considered the text messages and Freeman's use of the three cell phones, and concluded, based on the totality of the evidence, that the Commonwealth met its burden of proving a substantial nexus between the seized cash and illegal drug activity. (Trial Ct. Opinion at 11–12).
II. ISSUES ON APPEAL
On appeal,4 Freeman raises only two issues. First, he contends that the Commonwealth's evidence falls short of proving a sufficient and substantial nexus between the forfeited cash and illegal drug activity. Instead, relying on Commonwealth v. Marshall, 548 Pa. 495, 698 A.2d 576 (1997) (Marshall ), Freeman argues that at best, the Commonwealth's evidence establishes a mere “possibility” or “suspicion” that Freeman intended to use the cash to purchase drugs. Second, and in the alternative, Freemen contends that he “established that he was lawfully entitled to the money seized, and it was not unlawfully used or possessed by him.” (Freeman Br. at 6.)
III. DISCUSSION
To make its case for a forfeiture of property, the Commonwealth's evidence must be of a quality that it demonstrates a “sufficient or substantial nexus” between the property in question and a violation of the Drug Act. Commonwealth v. $2,523.48 U.S. Currency, 538 Pa. 551, 649 A.2d 658, 660 (1994) (quoting Commonwealth v. 502–504 Gordon Street, 147 Pa.Cmwlth. 330, 607 A.2d 839, 842 (1992) ). The Commonwealth carries its burden of proof by a preponderance of the evidence, which is a “more likely than not” standard.
Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 880 A.2d 523, 529 (2005) (Esquilin ). Circumstantial evidence can suffice, but the Commonwealth must do more than establish the “suspicion” of a nexus between cash and illegal drug trafficking. Mars...
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